New Delhi: The Supreme Court has struck down the National Judicial Appointments Commission (NJAC), but the debate on improving the current system of judges choosing judges continues. Under the ongoing collegium system, a group of seniormost judges of the Supreme Court selects judges for the higher judiciary.

Panellists at a discussion organized by Delhi’s National Law Univeristy on Tuesday took opposing stands on the issue: While Prof. Upendra Baxi and Assistant Prof. Anup Surendranath defended the Supreme Court order that struck down the NJAC, advocate Madhavi Divan and senior advocate Raju Ramachandran opposed it.

On 16 October, a five-judge bench of the Supreme Court ruled that an amendment that paved the way for the NJAC, was unconstitutional. By a 4-1 decision, it also quashed the NJAC Act, citing threat to judicial independence.

On 3 November, the apex court began hearing suggestions to improve the collegium system on transparency, eligibility criteria, setting up of a secretariat to assist the collegium and dealing with complaints against persons considered for appointment.

“Judging a judge is surely a difficult task." said Baxi. He said the basic structure was only one: That of judicial review and that people did not care whether judges were appointed or elected but only cared about speedy justice.

Surendranath criticised the NJAC saying, “There was no role for the chief justice of the high court in the NJAC." He said the chief justice’s power of consultation will be diluted by making him one of six people in the NJAC.

Criticising the judgment, Divan said the order will affect a large number of people of the wider public, beyond the judiciary. She pointed out that the provision of veto power was made under the Act and not the amendment; therefore that should not have been a basis for striking down the amendment.

Ramachandran said while there was no disagreement that independence of the judiciary does form a part of the basic structure of the Constitution, it would be difficult to accept derivatives of it, namely the primacy of the judiciary being part of the basic structure.

Calling the collegium system draconian and hereditary in nature, he claimed the judgment was short-sighted and that the independence of the judiciary needed to be secured not only against the executive but also from corporate houses and members of the bar, among others.

Mentioning an incident where a Supreme Court judge had said that he had never met a gay person, Divan pointed to the need for social diversity in the appointment system. Earlier, India’s Supreme Court has upheld the criminalization of same sex relationships.

Ramachandran said it was beyond logic for the Parliament to have a role in removal but not in appointment of judges.

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